C v A Local Authority

B e f o r e :

MR JUSTICE RYDER ____________________

____________________

Ms Katie Scott (instructed by The Official Solicitor through Hogans, Solicitors) for 'C' Mr Louis Browne (instructed by Borough Solicitor) for the Local Authority LM in person Mr Sam Karim (instructed by Irwin Mitchell LLP ) for LPM Ms Sophie Cartwright (instructed by Hempsons) for the PCT Ms Amy Street (instructed by Hill Dickinson LLP) for an Organisation Hearing dates: 12, 13, 14 and 17 January 2011 and 3 February 2011 ____________________

HTML VERSION OF JUDGMENT ____________________

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Mr Justice Ryder :

These are proceedings in the Court of Protection and the Administrative Court concerning C, a young man who was born on 29 July 1992 and is aged 18. C suffers from severe autism and severe learning disabilities and exhibits extreme, challenging behaviours including severe anxiety, sensory impairment, aggressive and destructive traits, significant self harm and harm to his carers. He has very significantly impaired communication skills and has a minimal tolerance of any change in routine or physical transition between places or activities. His symptoms were first recognised when he was 3 years old. He lives at a residential special school for pupils with severe learning difficulties and complex needs (hereafter referred to as 'the school') owned and operated by an organisation (hereafter referred to as 'the organisation'). He moved there on 21 May 2007 at least in part in consequence upon earlier judicial review proceedings.

The school has a head teacher who leads a senior management team which includes a head of residential services, a head of education and a head of behaviour support. At a national level, the organisation employs a clinical psychologist to provide clinical supervision. Save for the supervision provided by the psychologist, the school does not have a multi-disciplinary team to provide advice about the pupils, it purchases advice and support. The description in the evidence filed of the curriculum, behaviour management or support and residential care is that it is nationally regarded as at least good and in some respects outstanding. For example, although there are issues about the extent to which C can access education and social activities, he does have in place an individual education plan (IEP) with SMART targets for each term (specific, measurable, achievable, realistic and time dependent targets), a timetable of activities and a behaviour support plan. His accommodation includes a bedroom, a splash room, a bathroom, a toilet, a kitchen and a dining room. It also includes a room known as the 'blue room'. On the same corridor is another young man, who I shall refer to as A, who shares some of the facilities but has his own bedroom.

In preparation for C's admission to the school a looked after children (LAC) care plan dated 21 May 2007 was agreed which provided for his special educational needs (SEN) as identified in his SEN Statement. That included 24 hour a day care every day of the year with a 2:1 staffing ratio. His 'behaviour management' since May 2007 has included the use of the blue room at the school. The room is a specially constructed blue room which is padded and which is approximately 10 feet square with a secure door and window, through which the whole of the room cannot be seen when the door is closed. The door cannot be locked. The room is said to have or have had a calming influence upon C. The purpose of the padding is to try and prevent C injuring himself in and on the structure of the room. At the time the room was introduced it was agreed, at least as between the parties to these proceedings who were then involved, that it was in his best interests to provide and use such a facility.

In the local authority's amended Statement of Facts and Grounds in response to C's Claim for Judicial Review reliance was placed on an internal school guidance document for behaviour management i.e. the use of the blue room and physical management techniques as follows:

Transport Position: two staff, one either side of him, all facing forward, linking his arms and walking him to and into the blue room

Seated Transport/Transport Seated: this is used on the bus and is normally instigated by [C]. This involves two staff sat next to [C], linking his arms, and steadying him, blocking his aggression and self-injury.

Withdrawal door held: This is when [C] is in the blue room and staff remain outside the room, holding the door shut, preventing him from leaving if he is being aggressive to staff or others.

Withdrawal door NOT held: This is when [C] requests the blue room and staff do not need to prevent [C] from leaving the room, he is not seen as a risk at this time. However, [C] might go into the blue room of his own accord, become agitated and attempt aggression so withdrawal with the door held. Staff are not required to complete data on when [C] has self-withdrawn as staff are not imposing any sanctions on him at this time. However, some do out of personal interest, hence the availability of some data on this. From time to time we collect sample data on his use of the blue room but we have not done so for some time."

It is asserted by the local authority that although C's use of the blue room significantly increased in 2010 there were behaviour support plans in place the purpose of which was to try and reduce the use of the room. The evidence from the school is that despite the school's approach to C, his behaviours have become less controlled to the extent that since September 2010 education and activities are provided in his accommodation. The behaviours involve not only significant self harm but also physical assaults on staff which are frequent and sometimes serious. The most notable examples being a broken nose and a detached retina leading to loss of sight in one eye.

By a claim made in the administrative court for judicial review on the 15 September 2010, C by his litigation friend and mother, LM, sought against the local authority the following relief:

The relief sought included a referral to the Autism Treatment Trust and an allegation antecedent to that relief that the local authority had failed to fund the same. That relief was not pursued and during the course of the proceedings was withdrawn. The failures relied upon as against the local authority were:

By agreement, the Official Solicitor was substituted as C's litigation friend and has pursued the proceedings on behalf of C. C's mother, LM and his adult brother, LPM were made interested parties to the judicial review claim and respondents within the Court of Protection proceedings. Although LM has acted in person, LPM has had the benefit of public funding and together they have taken a very full part in the court's process.

On the 8 September 2010 the local authority commenced proceedings in the Court of Protection asking for permission to make an application and for declarations as to capacity and best interests and for an expedited hearing to consider whether the arrangements to which C was subject constituted a deprivation of liberty and/or were in his best interests.

On the 15 September 2010, a direction for expedition was made by His Honour Judge Pelling QC sitting in the Administrative Court in Manchester where this claim has been lodged and heard and as a consequence, all applications both in the Administrative Court and the Court of Protection were remitted to be heard concurrently by this court on the 8 October 2010.

On that day and in reliance upon written evidence provided by Dr Lisa Rippon, Consultant Psychiatrist for Young People with a Learning Disability and Mrs E who is a chartered clinical psychologist, it was declared that C did not have the capacity to conduct litigation and did not have the capacity to make decisions about his residence and care. Subsequently, written evidence provided by Dr Arvind Lowe, Consultant Psychiatrist, confirmed C's continuing incapacity in both respects. Agreement was reached to undertake and implement a comprehensive review of C including functional assessments, speech and language therapy assessment, medical assessments and expert evidence relating to the use of the blue room, nakedness and sexual development and protection. That agreement included the implementation of existing recommendations relating to C's sensory dysfunctions by a specialist speech and language therapist, Ms L. Ms L had already advised that C has significant difficulties with proprioceptive functioning (the way that he processes his body movements) and modulation (the regulation of his sensory processing and behaviour). She was commissioned to provide additional assistance and a sensory profile. Significant directions were also made for the recording of the use of the blue room by C.

It is important to note that on the evidence filed and heard on the 8 October 2010, the court was unable to hold that any deprivation of liberty as may be implicit in the arrangements for C's residence and care at the school was lawful. Furthermore, having regard to the nature and extent of the disagreements between the parties about the efficacy of those arrangements, it was not possible to make a best interests declaration about C's residence and care.

On the 27 October 2010 a further urgent interim hearing was conducted in the concurrent proceedings and an interim declaration was made that to the extent that C's general living arrangements at the school amounted to a deprivation of his liberty such deprivation was lawful being in C's best interests. That declaration did not extend to the lawfulness of the use of the blue room, the local authority having wisely elected not to pursue that issue at that time.

At the conclusion of this part of these proceedings, all remedies sought against the local authority have been compromised save for damages for the alleged Human Rights Act 1998 [HRA 1998] claims. Those claims have been remitted to be heard by this court in the Queen's Bench Division of the High Court and directions have been made for pleadings to be settled. Accordingly, there now exist:

This judgment, which provides the basis for the declaratory relief given and the agreements entered into by the parties, does not deal with the historic allegations which it will readily be apprehended are significant. A further hearing dealing with the history for the purposes of damages claims under the HRA 1998 will take place later this year. For this reason, this preliminary judgment will look forward to the recommended future placement and services for C rather than to the disputed history.

The expedited judicial review hearings have been heard concurrently with Court of Protection proceedings with a logical albeit at times complex case management matrix being developed to identify and resolve issues sequentially and as swiftly as possible. The court has read a great deal of factual and opinion evidence to inform the process of its own judgement and to identify issues for expert assessment and opinion. Where the evidence of fact remained relevant and in dispute, a process of early neutral evaluation had to be performed to summarise the best case of each party on any particular issue in order to obtain an opinion from the experts as to C's best interests having regard to the different factual scenarios relied upon by each party. As the court anticipated, although the disputed facts may be very relevant to adversarial damages claims and their defence, they were less relevant to the issues in judicial review or the best interests determination and in the final event, as I shall describe, the experts effectively agreed.

Oral evidence was heard from 9 experts, including at a concurrent evidence day when 7 of the experts were sworn together and were taken through an agreed agenda of issues for resolution within which they were encouraged to comment and add evidence to that of others as each issue was addressed in turn. It is in the nature of such a forum that the court is in control, sets the agenda with the agreement of the parties and then introduces the issues to the experts under each heading on the agenda. Supplementary questions are permitted from parties and the overall effect is more focused than traditional examination and cross examination and is particularly suited to the inquisitorial and collaborative approach of the Court of Protection.

The experts who gave oral evidence were:

Lest it be thought that there was a proliferation of experts, it should be remembered that with the exception of Ms L, and Mrs E , expert evidence of the nature and extent required by the court and the parties did not exist at the commencement of proceedings and some of the evidence commissioned went either to narrow i.e. discrete and very specialist areas of knowledge or to issues which remain seriously in dispute and where individual parties wished to be advised by an expert who they were prepared to pay for on the basis that his or her advice would be available to them and the court in respect of the contested issues which are yet to be resolved.

The context

Without determining the disputed facts, it is necessary to set out the context which is that C's mother asserts that C's behaviour has deteriorated to such an extent that what are prosaically known as 'the strategies for his behaviour management' have been invoked very frequently: many times on a single day and on most days if not every day. In particular, this has included confinement or seclusion in the blue room and the use of restraint techniques including the 'transport position', the 'team control position' or other restraint on a regular basis: on average more than twice a day. In June 2010, 2090 instances of challenging behaviour by C were logged, an average of 70 a day. In the same month, the log indicates that the blue room door was held so as to confine C on 192 occasions, that is on average 6.4 times a day and the effect, says LM, is that C is confined for many hours a day.

On 27 January 2010 a safeguarding incident occurred involving a care worker who used physical restraint to force C to dress. An investigation concluded that the restraint was inappropriate.

LM visits her son regularly and has seen evidence of him urinating and defecating in the blue room, which does not contain a toilet facility and engaging in distressing behaviours including the smearing and eating of his own faeces. She reports that there is frequently an acrid and pungent smell of faecal matter in the vicinity of the room which is overpowering in the room itself. The most recent deterioration in C's aggressive and self-injurious behaviours from January 2010 is said to have coincided with changes to his living environment which include the admission of another resident, A, on to the same corridor as C who exhibits noisy, disruptive and destructive traits and also changes to the complement of the care staff who work with C. LM's statement of evidence and LPM's statement in support contain the details of a mother's and brother's concerns but just one example from C's mother is graphic enough to set the scene:

I emphasise that some of the key issues about C's presentation are denied and some will have to be litigated. Mother's pen picture of her son has itself to be taken in context and I heard the head teacher of the school at the beginning of these proceedings. He was undoubtedly a dedicated man, albeit one who in the judgment of this court has lost sight of the essential human problems that need to be solved in the morass of structural and guidance issues which also arise. In the context of conceding that the involvement of the court had never been contemplated, he said:

It is common ground that C has become habituated to the use of the blue room. It is not only a room where he is secluded and/or confined, but also a room to which he has been encouraged to go and indicate that he wishes to go as a safe place. There are real issues about the appropriateness of the room for these disparate purposes. Despite its use, C continues to self harm including in the room and his social activities are significantly curtailed. There is an issue about the appropriate staffing level for C when he is distressed and self harm is likely to occur and also to facilitate access to others in the community i.e. to enable any normal socialisation by him. There is also an issue about the possible harmful side effects of certain medications if taken together.

One of the aspects of his behaviour is that he has increasingly found it necessary to remove all of his clothes. For a young man with the diagnoses he possesses, that is apparently not an entirely unexpected behaviour. There are very real sensory and perception issues involving touch, the feel of different materials, temperature, his ability to tolerate sensory stimulations and other extraneous but concurrent issues such as his tolerance of discomfort including noise and his own gastric symptoms. This description is not intended to be exhaustive or comprehensive: merely to example the complexity of the problem faced by assessors and carers alike. In practical terms there are real issues relating to safeguarding i.e. his personal dignity, privacy, safety (both physical and sexual) and emotional health which arise and which need the most carefully constructed and advised guidelines for staff to follow. A significant part of this hearing has involved the de-construction of existing practices and guidelines and the re-construction of new guidelines which meet the best interests of C for the time being.

Although a document existed in January 2010 which purported to be a pathway plan: it was incomplete and was neither signed nor dated. LM says that the assessments then proposed were not undertaken or if they were they were not provided to her. The consequence alleged is that at the commencement of proceedings there was no plan for the transition of C from the school which in July this year he has to leave nor was there a plan which provided for his residence and care as an adult and as a person who was formerly a 'looked after' child. Likewise, although there exists a care plan and associated behaviour support plans and statutory review documentation, the extent to which those documents exhibit that any short or long term planning had taken place or even whether the documents reflect the reality of C's life in the school are issues of fact which may need to be determined.

The local authority say in reply that the school is inspected twice a year by Ofsted's inspectors who have evaluated the school as satisfactory and meeting the full range of needs and interests of its pupils. Its boarding provision is good, and the overall welfare, health and safety of pupils is described as outstanding. The school is a very safe environment. Despite this, the local authority concede that

They also say that the blue room was designed by an autism adviser in 2007 with the approval at the time of C's mother. They comment that until 2010 its use had not caused any adverse comment in the statutory review process and that the intention had been to reduce his 'dependence' upon it. They say that there are frequent planned activities for C inside and outside the school, not all of which can take place because of C's behaviours at any particular time. Although they concede that seclusion and restraint in the blue room is a deprivation of C's liberty which if not authorised by the court is unlawful and in breach of his article 5 ECHR rights, they deny that seclusion and restraint are in breach of his article 3 and/or 8 ECHR rights. They deny that it is inappropriate to seclude C in the blue room when he is naked because of the need to protect his dignity or that he is left to urinate and defecate, smear, mouth or eat his own faeces or self harm in the blue room.

From the earliest stages in the Court of Protection proceedings the local authority has agreed to implement the recommendations of Ms L, Occupational Therapist, in particular a report of the 26 September 2010 in which she recommends sensory activities which are designed to meet C's needs and which are to be integrated with staff approaches to his behaviours. Despite this, it should be noted that Mr Wall has commented in writing about the Head Teacher's dismissive attitude to the behavioural approach suggested by Ms L and his 'programming approach' to the use of the blue room and nakedness. Although these are issues of fact yet to be determined, the court notes for future determination that it was Dr Rippon who recommended for C as long ago as 2007 the sensory and related behavioural strategies which are now agreed. Mr Wall says that if C feels the equivalent of neurological pain at certain times when his skin is touched and his desire to be naked is a form of tactile defensiveness, then he will understandably go where he is able to be naked i.e. the blue room where he can avoid pain and irritation. Whether and why these and similar issues have not been addressed before now will have to be the subject of further consideration by the court, but there is before the court a strong prima facie case condemning the lack of a problem solving inter disciplinary approach to C's needs.

The statutory schemes

It is important to understand that C's mother has at all times exercised her parental responsibility in respect of C without restriction. As a child and young person from the age of 6 to 18, C was accommodated by the local authority in accordance with section 20 of the Children Act 1989 [CA 1989] i.e. at the request of and with the agreement of his mother. At no time before these proceedings began did the local authority commence proceedings under the CA 1989 for a statutory order including for an authorisation to keep C in secure accommodation under section 25 CA 1989. At no time until it was known that the claim in judicial review was to be issued did the local authority make an application to the Court of Protection for a declaration as to the legality of the deprivation of C's liberty nor did they themselves or the organisation which operated the school have the power to authorise any deprivation of liberty under Schedules A1 and 1A of the Mental Capacity Act 2005 [MCA 2005] or otherwise (i.e. the power contained in Schedule A1 MCA 2005 for the managing authority of a hospital or care home to authorise deprivation of liberty for those persons who are not ineligible to be deprived of their liberty in accordance with schedule 1A). As I shall set out in more detailed in relation to the implications of the same, the school is a children's home not a care home or hospital for the purpose of this and analogous legislation.

The statutory schemes which regulated C's care are as follows. He was an accommodated child in accordance with section 20 CA 1989:

When he turned 16 he was an eligible child within the meaning of paragraph 19B of Schedule 2 of the CA 1989 as inserted by the Children (Leaving Care) Act 2000 [CLCA 2000] having regard to Regulation 3 of the Children (Leaving Care) (England) Regulations 2001 [CLCA Regs 2001]. By sections 23B(3) and 23E and schedule 2 CA 1989 as amended by sections 1 and 3 CLCA 2000 the local authority is required to prepare a 'pathway plan' for an eligible child based upon an assessment of his needs which must set out the advice, assistance and support which the local authority intends to provide, both while the local authority intends to look after the child and in the future. In R (J) v. Caerphilly CBC [2005] EWHC 586 (Admin) , Munby J. gave guidance as to who should prepare a pathway plan, what such a plan should contain and how it should be implemented. The assessment of needs should involve an evaluation of the nature, extent and severity of the child's needs so as to be sufficiently precise as to the manner in which those needs are to be met (see R (G) v. Nottingham CC & Nottingham University Hospital [2008] 1 FLR 1668 ).

By sections 23B(2) and 23D and paragraph 19C of schedule 2 CA 1989 the local authority is obliged to appoint a personal adviser for C who is independent of the local authority: see also R (J) v. Caerphilly CBC supra.

Once an eligible child turns 18 the local authority's duties to provide accommodation and care under the CA 1989 cease and the local authority's statutory obligations in respect of adults apply (see, inter alia sections 21 and 29 National Assistance Act 1948, section 2 Chronically Sick and Disabled Persons Act 1970 and section 47 NHS and Community Care Act 1990). However, the duties to assess need and maintain a pathway plan and personal adviser continue until the eligible child (now referred to as the former relevant child) is 21: section 23C CA 1989.

The CLCA Regs 2001 prescribe certain detail relating to the assessment and the pathway plan which is required of the local authority, for example, at regulations 5, 7, 8 and 9:

The local authority is required to complete a pathway plan in order to comply with its statutory obligations, regardless of any view that it might come to that an alternative form of care planning is appropriate: R (P) v. Newham LBC [2004] EWHC 2210 (Admin) .

Statutory guidance has been issued under section 7 of the Local Authority Social Services Act 1970 [LASSA 1970] in respect of the CLCA 2000 and the CLC Regs 2001 as ' Children Leaving Care: Regulations and Guidance' [the CLC Guidance]. The entirety of the guidance bears consideration but the following provisions are particularly relevant:

avoid moving young people who are settled unless it is unavoidable or offers clear advantages;

assess young people's needs and prepare them for any move;

ensure that the accommodation meets any needs relating to physical and/or sensory impairment and/or learning difficulty;

where practicable, offer a choice in the type and location of accommodation;

set up a package of support to go with the accommodation;

have a clear financial plan for the accommodation; and

have a contingency plan in case the proposed accommodation breaks down.

At the time of the safeguarding incident in January 2010, C was a child. The local authority is required by section 7 LASSA 1970 to act under the general guidance of the Secretary of State in respect of their social services (which includes children's services) functions unless there are exceptional reasons to justify a variation from the same. There have been in place throughout C's childhood Working Together guidelines which are issued by the Secretary of State under section 7. The latest edition entitled 'Working together to safeguard children' was issued by the Secretary of State for Children, Families and Schools in 2010 and provides:

[.…]

an explicit commitment to, and understanding of disabled children's safety and welfare among providers of services used by disabled children;

close contact with families, and a culture of openness on the part of services;

guidelines and training for staff on good practice in intimate care; working with children of the opposite sex; handling difficult behaviour; consent to treatment; anti-bullying strategies; and sexuality and sexual behaviour among young people, especially those living away from home; and

guidelines and training for staff working with disabled children aged 16 and over to ensure that decisions about disabled children who lack capacity will be governed by the Mental Health Capacity Act ( sic ) once they reach the age of 16.

In 2002 the Government also issued under section 7 LASSA 1970 statutory guidance entitled 'Guidance for Restrictive Physical Interventions' a document which describes itself as "How to provide safe services for people with Learning Disabilities and Autistic Spectrum Disorder". There is no question that this guidance applied to C and to the school and the guidance makes extensive cross reference to good practice both in implementing section 550A of the Education Act 1996 [EA 1996] which allows staff at a school to use reasonable force in relation to a pupil for the purpose of preventing him committing an offence, causing personal injury (including to himself) or damage to property and engaging in any behaviour prejudicial to the maintenance of good order and discipline, but also to other relevant guidance and good practice concerned with restraint and 'physical interventions'. Whether this guidance was applied to C's care both in spirit and as to the letter of the same will be a question for the next hearing in these proceedings. It follows that while C remains at the school this guidance continues to apply to him.

Aside from re-iterating that the restriction of a person's freedom of movement should be considered to be a form of physical restraint to be used only in exceptional circumstances, the guidance helpfully sets out the need for primary and secondary preventative strategies (paragraphs 5.1 to 5.4), the necessity for risk assessments (paragraphs 7.1 to 7.4), the necessity of good practice which is reflective of the guidance and the law (paragraphs 10.1 to 10.5), the obligation of proper recording (paragraphs 11.1 to 11.6) and the requirement for staff training (paragraphs 13.1 to 13.4).

The local authority has also been given non statutory guidance by the same Government Department in July 2009 entitled 'Safeguarding disabled children: Practice guidance' which provides:

That much of the statutory schemes which relate to C is not apparently in issue between the parties. The legislation and guidance relating to seclusion (and restraint in that context) is not agreed between the parties and in so far as it is relevant to this hearing, I shall set out the submissions of the parties and my conclusions in due course. What is agreed, however, is the HRA 1998 provisions through which the issues relating to detention, seclusion and restraint need to be viewed.

Articles 3, 5 and 8 of the European Convention of Human Rights [ECHR] provide as follows:

Public authorities are under a positive obligation under article 3 ECHR to protect people for whom they are responsible from inhuman and degrading treatment (see, for example Pretty v. UK [2001] 2 WLR 1598). A similar positive obligation arises under article 8 ECHR (see, for example R (Bernard) v. LB of Enfield [2003] HRLR 4 ). A failure to fulfil these obligations may sound in damages under the HRA 1998: R (Bernard) supra and R (Anufrijeva) v. LB of Southwark [2004] QB 1124 . The local authority denies that the complaints made on behalf of C amount to a breach of his article 3 ECHR rights on the basis that article 3 provides protection against only the most serious ill treatment which is why it is incapable of justification: S v. Airedale NHS Trust [2003] Lloyd's Rep Med 21 and on appeal at [2003] EWCA Civ 1036 , Thomas v. Baptiste [2000] 2 AC 1 PC at 27, R (Prosser) v. SSHD [2010] EWHC 845 (Admin) at [18] and R (Limbuela) v. SSHD [2006] 1 AC 396 . They also deny that they amount to a breach of his article 8 ECHR rights.

In determining whether there is a deprivation of liberty within the meaning of article 5 ECHR, three conditions must be satisfied:

These conditions and the fact that a deprivation of liberty without lawful authority would be a breach of C's article 5 ECHR rights are settled law: see for example: Storck v. Germany (2005) 43 EHRR 96 at paras [74] and [89], JE v. DE, Surrey County Council and EW [2006] EWHC 3459 (Fam) , [2007] 2 FLR 1150 at para [77], G v. E and Ors [2010] EWHC (Fam) 621 at para [77] and Re MIG and MEG [2010] EWHC 785 (Fam) at paras [102], [127 to 206] in particular at [151] as upheld by the Court of Appeal at [2010] EWCA Civ 822 . As in the case of C, the local authority would be responsible for the deprivation of liberty where it is closely involved in the care plan and service provision: A Local Authority v. A, B and Equality and Human Rights Commission [2010] EWHC (Fam) 978 at paras [96] and [110-162].

It should be noted that although in consideration of the objective element the court will take into account a wide range of factors including type, duration, effects and manner of implementation of the measure in question, the distinction between a deprivation and a restriction of liberty is one of degree of intensity not of nature and substance: Guzzardi v. Italy (1980) 3 EHRR. The key factor is whether the person is, or is not, free to leave. That can be tested by asking whether those treating and managing the person exercise complete and effective control over the person's care and movements: HL v. United Kingdom (2004) 40 EHRR 761 .

The local authority's concessions and certain settled facts

It is common ground that C is unable to leave the school nor is he able to leave the locked corridor on which his bedroom, bathing and other facilities are located i.e. it is submitted that the general conditions in which he lives amount to a deprivation of his liberty. In addition he is secluded in the blue room without being able to leave which arguably amounts to a further deprivation of his liberty. Between his 16 th birthday on 29 July 2008 when by reason of section 2 MCA 2005 the jurisdiction of the Court of Protection could have been invoked and his 18 th birthday and indeed until interim relief was obtained in these proceedings, there was no authority by court order or statutory power for C to be deprived of his liberty either generally or in the blue room. It is now conceded by the local authority that from the time C reached the age of 16 the approach of the MCA 2005 was more relevant to his situation than that of the CA 1989. That approach was not applied to C.

The local authority maintain their denial that C's seclusion and restraint in the blue room or elsewhere amounts to a breach of his article 3 and/or 8 ECHR rights but now concede that when he is secluded and restrained in the blue room as a consequence of his extreme challenging behaviours that amounts to a deprivation of his liberty and in so far as that is not authorised by the court, such a deprivation is unlawful and in breach of his article 5 ECHR rights.

On 14 October 2010 the local authority also conceded that they were in breach of their statutory obligations under the CA 1989, the CLCA 2000, the CLC Regs 2001 and the CLC Guidance to provide C (and LM) with a pathway plan setting out the arrangements for his transition to adult social services in sufficient detail to accord with the regulations and case law. That plan should have been created when C turned 16 and it was not until January 2010, 6 months before C became 18 that an incomplete pathway plan was produced. A plan which complies with the local authority's obligations was eventually produced within these proceedings and as a consequence of the inter-disciplinary working directed by the court within both its Administrative Court and Court of Protection jurisdictions. In addition, although not formally conceded, there is no evidence before this court that C was ever provided with a personal adviser. The treatment of the safeguarding incident by the local authority was in breach of the Government's statutory guidance at least in respect of its notification to C's mother in sufficient detail for her to take a reasoned position so as to be able to help her son.

At the commencement of these proceedings and despite there being in existence an acknowledged end date in July 2011 beyond which C would not be able to remain at the school, there was no care plan which provided for the move to a new place of residence and care. Even the nature of the new placement was still the subject of discussion and dispute. There was no funding agreement about his future care and its health and social care components. The rival contentions included a specialist healthcare facility that was not then identified, adapted or staffed and home care in a facility not yet identified, purchased, built, adapted or staffed. It was necessary to make a decision about this aspect of C's care sooner rather than later not least to permit the plan once formulated to be implemented by detailed work including the adaptation of premises and the employment of dedicated specialist staff. In the event, and for which the court and all parties remain very grateful, the PCT identified an appropriate resource which will, when renovated and adapted, be a complete living environment within a specialist healthcare facility with dedicated staff, new procedures developed as a bespoke response to C's needs and managed and advised by a new inter-disciplinary team of experts.

From the start of the court's involvement, there were secondary but important issues relating to C's best interests. Although the primary issues were the identification and approval of new residence and care arrangements and deprivation of liberty safeguards, there were also important best interest issues surrounding C's socialisation (in and out of the school), nakedness and the shared accommodation at the school with another young person, A, whose needs are similar to those of C save that A becomes destructive of material items and property when his behaviour is challenging. It was acknowledged in the written evidence of the Head of Residential Services at the school that the behaviours of C and A impact on each other and certainly so far as C is concerned, it has become common ground during this hearing that the impacts are exclusively adverse to the extent that the court has felt compelled to declare that it is not in C's best interests to share accommodation with A.

C's use of the garden area at the school is compromised by his behaviours and needs, not least his nakedness. The school has not been able to find constructive ways around a 2010 Ofsted inspection opinion that his personal dignity would be compromised were he to have access to the sensory garden at the school. There is an overwhelming feeling that at no time does C get to exercise his own privacy, with or without clothes, so that he can do what he really likes doing in his own home: playing in the open air and preferably with water which he finds relaxing and a positive sensory perception.

Solutions to the problems presented by C's needs in particular his need to be naked and how that and other behaviours are managed so as to be lawful and in his best interests have been the continuing subject matter of these proceedings. Without prejudice to the arguments yet to be heard on historic illegality and ECHR non compliance, new guidelines have been crafted based upon the expert evidence this court has heard and read. The framework within which that has occurred is that provided by the Mental Capacity Act 2005 [MCA 2005] albeit with the necessary overlay of the remedies available to the High Court whether in the Administrative Court, the inherent jurisdiction in support of the Court of Protection or the Court of Protection as a superior court of record: see section 47(1) MCA 2005.

The Court of Protection jurisdiction

The jurisdiction of the Court of Protection is defined by the provisions of the MCA 2005 which came into force on 1 October 2007. A decision made by the court under the MCA 2005 must be in the best interests of the protected person, C. By section 1 (6) of the Act:

There is power in the Court of Protection by section 48 MCA 2005 to grant interim declarations provided that the relevant person lacks capacity in relation to the matter and it is in the best interests of that person to make the order or make the directions without delay.

The manner in which a best interests decision is to be made by a decision maker, including the court, is addressed in section 4 MCA 2005. There is no issue on the facts of this case as to how these provisions are to be applied, but for completeness, a summary is important in order to set this court's decision making process in context. By section 4(2) a court must consider all the relevant circumstances and by section 4(4), so far as is reasonably practicable, the court must permit and encourage the person concerned to participate in the decision affecting him. Given the severity of C's condition it has not been reasonably practicable to directly involve him in the decision making process, but the Official Solicitor, his family and indeed all of the parties to these proceedings, have striven to put before the court options based upon what C might or would want and the reasons for the same. There has been a very genuine desire on everyone's part to implement the letter and the spirit of the legislation and in particular section 4(6) which deals with C's past and present wishes and feelings, beliefs and values and other factors which C would be likely to consider if he were able to do so.

The court is not obliged to give effect to the decision which C would have arrived at if he had capacity to make the decision for himself and was acting reasonably (sometimes referred to as a 'substituted judgement') but rather it applies an objective test as to what is in his best interests taking into consideration the factors which C would be likely to have considered if he had capacity including what C would have decided if that can be deduced. By section 4(7) the court must take into account, if it is practicable and appropriate to consult them, the views of other persons. It may be of some significance in the future hearing of claims under the HRA 1998 whether the section 4 requirements were applied by other decision makers relating to C's care before the involvement of this court. The process of best interests decision making described in the 2005 Act applies to all decision makers not just the court.

In practical terms best practice both in proceedings before the Court of Protection and generally is to apply a structured approach to the decision to be made. The decision maker draws up a notional balance sheet of welfare factors describing the benefits and detriments of the available courses of action having encouraged the person concerned to participate in the process and having ascertained wishes and feelings, beliefs and values and other considerations particular to the person including consulting with relevant third parties. The role of the decision maker and that of an expert are distinct, albeit that the decision maker will want to pay appropriate regard to the opinion of experts in the context of all the circumstances (see, for example A County Council v. K, D and L [2005] EWHC 144 (Fam) , [2005] 1 FLR 851 ).

Having gone through this structured process, the decision maker must form an objective value judgement giving effect to the statutory imperative: Re P [2009] EWHC 163 (Ch) , [2010] Ch 33 at [39] per Lewison J. and Re MM (an adult), A Local Authority v. MM [2007] EWHC 2003 (Fam) , [2008] 3 FCR 788 at [34] to [35] per Munby J. Decision makers need not be risk averse and again this is a very important consideration as regards C. As Munby J. commented in Re MM at [120]:

While regard must be had to the principle of acting in a less restrictive way, the best interests principle takes priority i.e. the option which is in the person's best interests must be chosen which may not necessarily be the least restrictive option available.

Guidance on the 2005 Act is set out in the Mental Capacity Act 2005 Code of Practice which is supplemented by the Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice (26 August 2008). Paragraph 5.13 of the 2005 Code of Practice sets out a checklist of factors that need to be taken into account in determining what is in a person's best interests and paragraphs 2.6 and 4.61 of the DOLS Code of Practice describe deprivation of liberty, paragraph 4.61 inserting into that checklist additional factors that apply when considering best interests as respects deprivation of liberty as follows:

The local authority and the organisation submit that in accordance with paragraph 1(2) of schedule A1 to the MCA 2005 these safeguards only apply to a hospital or care home. The school is not a 'hospital' within the meaning of section 275 of the National Health Service Act 2006 nor is it a 'care home' within the meaning of section 3 of the Care Standards Act 2000 [CSA 2000] by reason of schedule A1 of the MCA 2005 at paragraphs 175 and 178 where the definitions are applied. In accordance with the meaning of a school as defined by section 4 EA 1996, the school is an independent special residential school operated by a non public sector organisation i.e. it is not part of the further education sector nor is it a specialist college service or part of the higher education sector. Having regard to the accommodation provided at the school, its status in law is a 'children's home' within the meaning of sections 1(2), 1(6) and 3(3) CSA 2000. Such a home is inspected by Ofsted not the Care Quality Commission. As a consequence and by reason of sections 8(2) and 20 of same, the Health and Social Care Act 2008 [HSCA 2008] and the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 do not apply to the school nor by section 21 HSCA 2008 does the Care Quality Commission Guidance .

Although the deprivation of liberty safeguards set out in schedule A1 MCA 2005 do not apply to C because he is not detained in a hospital or care home (nor would they have applied in any event to C before he was 18 by reason of paragraph 13 of schedule A1), the application of good practice by the Court of Protection in any determination of best interests will of necessity have regard to the same material as that contained in the DOLS Code of Practice . That is because inter alia the DOLS Code of Practice is overtly informed by decisions of this court and the European Court of Human Rights as at the time of its publication (see the paragraphs under chapter 2 of the same). As the DOLS Code of Practice makes clear at paragraphs 10.11 and 10.12, the reason why the Code does not apply to circumstances other than hospitals and care homes is that save in respect of conditions to which the MHA 1983 applies, in all other circumstances an application must be made to the Court of Protection before the deprivation of liberty begins and in respect of C that should have been from his 16 th birthday.

The distinction between what a court will do when its jurisdiction is invoked and what others acting in relation to a person who lacks capacity have a duty to do is more than merely academic if breach of duty is alleged. Other decision makers, be they the local authority, the school or the organisation do not have a duty to act in accordance with the DOLS Code of Practice in relation to a decision to seclude or restrain C or which otherwise has the effect of depriving C of his liberty because the duty which is set out in section 42 MCA 2005 only applies the DOLS Code of Practice to those exercising functions under schedule A1. It hardly needs repetition that the absolution of one of more of the institutional parties from any finding of breach of duty in this regard hardly explains or mitigates the rather more significant illegality in not applying to the Court of Protection before the deprivation of liberty began.

The Mental Health Act 1983 [MHA 1983] applies to the reception, care and treatment of mentally disordered persons. Section 1(2) of that Act defines mental disorder as "any disorder or disability of the mind". Section 1(4) MHA 1983 defines learning disability in the sense that the term has been applied to C as a "state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning". Learning disability is excluded from the definition of mental disorder for certain specific purposes in the Act as described in sections 1(2A) and 1(2B) "unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part". In the judgment of this court, it is patently the case that from time to time C's disability falls within s 1(2) MHA 1983 and it is precisely because this is so obvious that the two psychiatrists who have given expert evidence to the court on the point have concluded that C needs assessment under the MHA 1983. Whether he would be better protected and treated by a regime constituted under the MCA 2005 or the MHA 1983 is a separate question from the nature and extent of his assessed disorders and his abnormally aggressive conduct.

In any event, the exclusionary provisions relating to learning disability are concerned with the compulsory powers contained in the Act which have not been considered let alone exercised in respect of C. So far as the wording of the MHA 1983 is concerned, there appears to be nothing inconsistent in a person's disability falling within both definitions and that is what C's disability prima facie appears to do. Furthermore, such an interpretation would permit of the use of the community treatment and care provisions in the Act for someone like C. Had C been assessed for the purposes of the MHA 1983 and if his disability had fallen within the definition of mental disorder he would have been eligible for care and treatment in the community as a child patient who lacked competence. Such treatment within the meaning of the Act would have had to have been in accordance with the Code of Practice issued under the 1983 Act. It is a question worthy of enquiry why such a course was never contemplated or, if it was, was not undertaken. In the absence of a MHA 1983 assessment, this court has not been provided with the material to decide whether C is "within the scope of the Mental Health Act" nor whether C would object to being a mental health patient or to some or all of the treatment that may be recommended as defined in Case E of paragraph 2 of schedule 1A of the MCA 2005 so as to make him ineligible to be deprived of his liberty under the MCA 2005. No party has argued that in C's case the court's powers are as yet constrained by section 16A MCA 2005 i.e. ineligibility to be deprived of one's liberty by reason of the engagement of the MHA 1983. The question can be of critical importance (see J v. The Foundation Trust & Ors [2009] EWHC 2972 (Fam) ; [2010] 3 WLR 840 at [45] and [46] per Charles J. and BB v. AM & Ors [2010] EWHC 1916 (Fam) at [25] per Baker J.). As yet that factual matrix is not developed.

The Mental Health Act 1983 Code of Practice is issued by the Secretary of State under section 118 MHA 1983. By section 118 (2A) the Secretary of State is required to include in the same a statement of principles to inform decisions under the Act and by section 118(2B) those principles include: "(c) minimising restrictions on liberty, (h) patient well being and safety and (i) public safety". By section 118(1) the MHA 1983 Code of Practice is:

It is submitted by the local authority and the organisation that the MHA 1983 Code of Practice does not apply to any seclusion which occurs at the school. It is, however, conceded by the organisation which operates the school that as a matter of good practice the school's measures and protections should be informed by the relevant principles of the Code. It is clearly the case that section 118(1)(a) does not apply to a children's home but there is nothing in the scheme of the 1983 Act or its application to children in the community who are incapacitated within the meaning of the MCA 2005 which prevents section 118(1)(b) from applying. The plain language of the sub-section and any purposive construction of the same compels the court to conclude that it applies. The purpose of the MHA 1983 Code of Practice and its enabling section is to protect those who have mental disorders as defined in the 1983 Act by making provision for their reception, care and treatment whether or not the Act's compulsory measures have been engaged. In my judgement, in the absence of any corresponding guidance that is applicable to a severely learning disabled child who is resident in a special school and whose condition prima facie falls within the definition of a mental disorder, the guidance applies.

There is nothing inconsistent in determining that a young person's condition falls within the definition of a mental disorder and that that person is entitled to the protection afforded by the Code while maintaining the additional protection of the Court of Protection in relation to his deprivation of liberty at least until that person is assessed as being within the scope of the 1983 Act when a decision has to be made as to which statutory code shall apply i.e. the 1983 Act is engaged. It would be a dereliction of the duty of this court (whether constituted as the High Court in its inherent jurisdiction or the Court of Protection) to fail to afford such residual protection to a vulnerable person at least until another statutory code is invoked. Accordingly, so far as C is concerned and having regard to the expert evidence which I describe about the severity of his disability and behaviours, as a matter of law and good practice, the Mental Health Act 1983 Code of Practice applies to his care and treatment at the school and in particular to his seclusion and restraint. It should be noted that despite the intense argument that the court has heard and read on this issue, the MHA 1983 Code of Practice (unlike other forms of statutory guidance) does not impose a duty on professionals, rather they are to have regard to it and explain and record the reasons why they have decided to depart from it.

Whether the MHA 1983 Code of Practice should apply by analogy to children and young persons in schools which are children's homes but whose learning disability does not fall within the definition of a mental disorder has not been argued before this court. At least so far as this school and this organisation are concerned it is conceded that in the absence of statutory control over seclusion and restraint in that context, the MHA 1983 Code of Practice should be applied as good practice. With respect, I agree. It would be unacceptable for C as an incapacitated child to be secluded or restrained without reference to best practice guidelines and that should apply to other children and young persons in the same or similar circumstances. A decision maker including a court has to make a decision for an incapacitated child in accordance with best interests and that of necessity includes a consideration of best practice not least so as to determine whether any less restrictive options are available. The expert evidence accepted by the court in this case is clear, the best practice is contained in the MHA 1983 Code of Practice . This court would have been constrained to consider it and apply it as best it could to its own determinations even if it had not applied to C as a matter of law. This conclusion no doubt has implications for other young people with serious learning disabilities who are in residential care.

Although there are a multitude of provisions in the Code which are relevant to C, for example the physical restraint provisions in chapter 15, the following provisions are of particular application, in each case reading pupil for patient and school for hospital:

Ensure the safety and well being of the patient;

Ensure that the patient receives the care and support rendered necessary by their seclusion both during and after it has taken place;

Distinguish between seclusion and psychological behaviour therapy interventions (such as "time out");

Specify a suitable environment that takes account of the patient's dignity and physical wellbeing;

Set out the roles and responsibilities of staff; and

Set requirements for recording, monitoring and reviewing the use of seclusion and any follow-up action.

[…]

Provide privacy from other patients, but enable the staff to observe the patient at all times;

Be safe and secure and should not contain anything which could cause harm to the patient or others;

Be adequately furnished, heated, lit and ventilated; and

Be quiet but not soundproofed and should have some means of calling for attention (operation of which should be explained to the patient)."

Paragraphs 15.48 to 15.59 of the Code set out a procedure for seclusion. This is also directly applicable to C but need not be set out in full. In essence there is a requirement for a local policy which sets out a procedure for starting and reviewing seclusion. A suitably qualified professional can make the decision but immediately informs others so that an initial multi-disciplinary review of the need for seclusion can occur as soon as is practicable after the seclusion begins. The review is to establish whether seclusion needs to continue, the individual care needs of the person while he is in seclusion and the steps that should be taken to bring the need for seclusion to an end as quickly as possible. There are review criteria: every 2 hours by the suitably qualified professionals and every 4 hours by a doctor or suitably qualified approved clinician. If the person is secluded for 8 hours consecutively or 12 hours over a period of 48 hours a more formal multi-disciplinary review is to be undertaken. There are also protections about the availability of suitably skilled professionals within sight and sound of the seclusion room, the observation and monitoring of the person and a documented record every 15 minutes. Paragraph 15.62 sets out basic record keeping requirements.

Although the question has been raised as to whether the use of the blue room is a further deprivation of 'residual' liberty, it is agreed that, for the purposes of this Judgment and subject to the court determining whether and how the relevant guidance is to be applied, on the facts as they concern C the use of the blue room should be considered to be a seclusion rather than a further deprivation of 'residual' liberty.

Experts Consensus

Mrs E the clinical psychologist who undertakes clinical supervision for staff at the school and who has had an overview of C's problems for some time, outlined the problems which the other experts have been asked to advise upon. She said that:

To the extent set out above, Mrs E's evidence is accepted in the context that there are significant disputes about what has in fact happened with respect to C's care since 2007. She concedes that it is now necessary that the multi functional use of the blue room i.e. for seclusion and relaxation or sensory desensitisation be changed so that there are separate areas for different purposes and that in future a withdrawal area must never be used for seclusion. She advised, however, that that change would itself be very stressful for C. Dr Carpenter agreed that it would be impossible for C to adapt to a change in his use of the blue room in the short time remaining at the school, although that would be different if the professionals had a year in which to assess and achieve change.

Dr Carpenter gave clear and cogent evidence about C's needs in the future that was un-contradicted by anyone with similar skills and expertise. In so far as his evidence departed from the opinions of others, the court strongly preferred his evidence and advice not least because it was based upon research, skill and expertise which are at the leading edge of professional practice in the specialist fields which are relevant to C. The court ventures to suggest that advice of the nature Dr Carpenter provided to the court should have been available to the parties for C's benefit from at least 2007. He advised that:

Ms Sharon Paley is an expert in the care of young people with learning disabilities with a particular emphasis on autism. It is now intended that the local authority and the school will use her to obtain advice about and a review mechanism for the continuing care of C until he moves. She joined Dr Carpenter in pointing out that the informal use of confined spaces to manage behaviour over a long period of time is unhelpful to achieving long term behavioural change in people with intellectual disability and that there is some evidence that such a strategy may cause trauma in people who have learning disabilities and autism. She also agreed with Dr Carpenter that the subjective belief that C's nakedness is offensive, which permeates the school's approach to C, needs re-consideration.

Her opinion is that even in the circumstance that C is wishing to use the room, its continued use or the use of a similar environment for the same multiple purposes will present a significant risk to him leading to physical and psychological harm. She acknowledged, however, that in the interim the use of the room cannot be stopped but its use can be reduced or modified by the following strategies:

The new healthcare facility : All of the experts agreed that the facility identified by the PCT would be suitable for C. There are some works required and a team of dedicated carers will need to be employed. The facility has a closed garden area and its private area i.e. the flat would not be shared with anyone else. The facility benefits from a multi disciplinary team although some expertise, for example the specialist sensory OT advice from which this court has gained considerable benefit, would need to be commissioned. LM and LPM are cautiously optimistic although they remain committed to an eventual move into a purpose built facility in the community nearer to where LM lives. Although the new placement and its multi disciplinary team would be a bespoke service, something the experts agree is the only and best practice solution to the problems identified, it is potentially a more restrictive placement.

Dr Lowe advises although an in patient assessment and treatment regime may be more restrictive in the short term, it would have the benefit of identifying possible improvements for C and disentangling them from enduring behaviours. This would help to plan for the least restrictive placement in the community. Dr Lowe and Mrs E recommend a hospital setting because of the intensive inter-disciplinary work required to effect as much improvement as quickly as possible for C. Dr Rippon and Mr Read agree and Dr Rippon adds that this will ensure the best possible chance of a long term placement in the community and the holistic assessment and stabilisation of his needs.

It has subsequently been agreed that the new healthcare facility will have a dedicated team of 15 members of staff. This will permit a 3:1 staff ratio during the day and a 2:1 staff ratio at night. There will be no need to use bank or agency staff. All 15 members of staff will be trained to work with C i.e. to respond to his needs in a consistent and planned way. C's new care plan will involve a comprehensive review of his needs and medication by a multi-disciplinary team which includes psychiatry, psychology, an advanced autism practitioner, nurses who specialise in managing aggression and separately behaviour therapies and speech and language therapy. The team will have access to an occupational therapist with experience in sensory integration. The suggested approach to his care is an adapted form of cognitive neuro rehabilitation which is extensively used at the healthcare facility which has been chosen. A detailed list of daytime activities has been drawn up for assessment and incorporation into C's care plan.

The accommodation will be on the ground floor with a private and secure garden. It will be dedicated for C's use i.e. it will not be shared and any issues relating to nakedness and privacy can be accommodated within the accommodation so as not to restrict C's activities. There will be a low stimulation quiet lounge and a wet room, an activities room and private space including a bedroom, a living room/dining room and a kitchen. The confusion of purposes will not be replicated in the new accommodation. Light, temperature and colour sensitivity will be carefully considered, as will the use of materials and fabrics. There will not be a blue room or a room dedicated for use as a seclusion room.

Supported living options : Although the experts were wary of prescriptive timescales, no-one dissented from the evidence of Dr Lowe and Mr Wall that the assessment of C in the PCT identified facility may take 18 months to 2 years before any move to a supported living option in the community. There was a unanimous opinion that such an option was not in C's best interests at the moment, not least because there would be an inadequate structure of staffing and clinical support for the intensive and comprehensive re-assessment of his needs that is required. On the positive side, Ms Paley and Ms L were of the opinion that a new environment with sensory integration therapy may produce a complete change and rapid progress albeit that time will still be required. There was again a unanimity of opinion that upon discharge from the new placement C will require a specialist provider to co-ordinate all of the services identified for his needs and that the model of care will need to be decided at that point not now.

The use of the MCA 2005 : Dr Carpenter would have liked to have seen a mental health assessment of C. Dr Lowe has consistently advocated the use of mental health legislation to control the assessment of C in circumstances where there will be no blue room and new staff. He anticipates the need for restraint, whether that be physical or chemical: a process which he anticipates might be cumbersome under the MCA 2005. Despite this prediction, however, he is content to agree with the balance of expert opinion that it will be the new team on the ground who must decide. They must have both assessment and treatment routes available. If experimental medications are to be considered, a second doctor's opinion should in any event be canvassed.

Dr Carpenter, Dr Lowe, Mr Wall and Mr Read agree that the least restrictive legislative framework should be used and that the decision will be for the new team. Their experience of the MCA 2005 is that it can be sufficiently flexible and expeditious but just as important, it will involve independent assessors like Mr Wall and Mr Read who will be able to advise on the non medical aspects of welfare.

Although the clinical regime must be a matter for the new team to consider, there is guidance which ought to be borne in mind. In GJ v. The Foundation Trust and Ors supra Charles J. provided guidance on the interplay between the MCA 2005 and the MHA 1983. At paragraphs [45] and [46] he said:

Transition : It is agreed that C's transition from the school to his new placement must be meticulously planned and that the plan must set out the agreed involvement of C's family: LM and LPM. It will not be possible to introduce or assimilate C to the new placement because that will only confuse and distress him. Familiarisation should be provided for the new nursing and care staff who should visit C at the school before the transition occurs and during the planning process on more than one occasion so that C might recognise them. The journey between the school and the new placement could be facilitated by doing something C has become used to e.g. going on a private adapted bus with a stop on the way at a fast food outlet that he likes.

The interim use of the blue room : It is agreed that to provide an alternative environment for C in substitution for or in addition to the blue room might risk greater harm and an increased need for the blue room itself if the use of the alternative was to be introduced and then stopped within a 6 month period. To develop an alternative now which had to be carried across to the new placement would impose an unnecessary constraint on the fundamental re-assessment to be undertaken in the new placement. Even minor changes to the use of the room and his other accommodation would involve taking one change at a time and training the staff in their consistent use of the strategy introduced.

Of more importance is the consensus that there should be a senior member of staff who ensures in so far as it is practicable that the care plan is adhered to as respects the use of the blue room and that any non adherence is reported upon. It was agreed that Ms Paley's specialist team are best placed to advise the existing carers and staff and to ensure that there is a consistent use of the blue room and reduction in any inappropriate use.

Seclusion : As advised by Dr Carpenter there is a continuing need in the interim for seclusion in the blue room for C's own safety and for the safety of others. As Mr Wall put it, "unless physical intervention is routinely used, C is likely to cause severe harm to himself and those caring for him". Dr Carpenter advised that any attempt to change that need without a re-assessment risks compromising his safety in an unacceptable way by increasing the likelihood of aggressive outbursts in response to the changing environment. It is accepted that only those with specialist training and the skill and experience to identify what is a seclusion, what is a voluntary withdrawal and how to end a process of seclusion as quickly and safely as possible, can improve C's position in the interim. Best practice would dictate that such a skilled intervention is backed by integrated clinical involvement. No matter how good the carers and supervisory staff may be, that is not a service available in the school. This court is clear that that is the essential problem which underscores these proceedings.

Just one example of the need for integrated inter-disciplinary advice and practice in this regard is provided by Mr Wall in his best interest report of September 2010, with which the court agrees, where he says:

This aspect of the use of the blue room requires the continuing and consistent intervention of someone senior and the court accepts that Ms Paley and her team can provide that intervention in the interim.

Nakedness : Now that the expert evidence has been heard, no expert disagrees with Dr Carpenter. It is agreed that C should be able to use the bathroom, the splash room, his own bedroom and the corridor to get to one of these rooms when he is not clothed. During the proceedings the use of the corridor as a route through the school was stopped and provided that staff are vigilant about use of the corridor by others, C's privacy will be respected unless A has returned from his activities. C can therefore have 'protected time' for himself when he can be naked. Because C will not understand the choice he is sometimes allowed to make or any inconsistency in the places and times during which he can be naked there will need to be a very careful plan which sets out how the staff are to support nakedness without increasing C's distress. For the longer term there are proprioceptive strategies which will help him because they will lead to physiological change which will compensate for the physiological element of his need to be naked.

Because of the risks inherent in any significant change before C moves, the experts consensus was to use the blue room in the least restrictive way possible and to encourage C to use his bedroom when he is naked and until he needs to or can be persuaded to get dressed. The blue room is not a resource to be used simply because C is naked. As Dr Lowe said, "the inappropriate use of the blue room will already have caused whatever psychological damage it has and the question is how to minimise further damage".

At the end of the expert evidence, the court heard from some of those responsible for C's care. On the question whether A could be moved so as to improve C's circumstances, the head of children and young people service for the organisation, told the court that A's care was provided under a contract with a different local authority which had provisions for its termination with notice. There is no room to move A or C elsewhere and there would be no reason to terminate the contract relating to A whose care is regarded as appropriate. In practical terms, therefore, it is not going to happen before C has to move at the end of the July whatever conclusion the court comes to. Furthermore, an unplanned move as already described would be more harmful than the interim status quo. That does not alter the fact that C's present circumstance where he has to share accommodation with A is not in C's best interests. The noise generated by A and the restrictions imposed upon C are not in C's best interests and it is conceded by the school's head of residential services that no consideration was given to the adverse influences of the one young person on the other when A was moved in to join C. The experts firmly agree that it is not in C's best interests to share accommodation with A and the court without hesitation accepts their joint opinion.

There was welcome confirmation from the senior team leader at the school that the corridor in C's accommodation would no longer be used as a walkway by other residents seeking to access a cloakroom which was now going to be moved. That will have the immediate effect of respecting C's privacy and reducing noise which is distressing to C. There was also confirmation that the existing staff levels were likely to be sufficient for the remainder of C's time thereby minimising change and the number of carers and support staff working with C.

The senior team leader's oral evidence could not have been clearer in relation to the issue of nakedness i.e. Dr Carpenter and other witnesses are correct in their opinion that the staff on the ground are fearful of C being naked and have no positive strategies to deal with it other than to persuade him to dress as soon as possible. There appears to be no real understanding of the sensory or autonomy issues underlying this issue and the court is left with the overwhelming impression that C is conditioned to retreat into the blue room because that is the one location where he can remove his clothes without intervention. As the team leader confirmed in cross examination, even when C has not gone to the blue room to remove his clothes he now appears to adopt that practice as a ritual behaviour when he is in the room. Once there, although the room is not designed to be used to seclude him because he is naked, if he is naked his exit will be the subject of negotiation and even on the team leader's own evidence he may as a consequence be prevented from leaving. It is worth re-iterating the expert evidence that the court accepts: seclusion because of nakedness alone is wholly unacceptable. Having heard that evidence, the organisation now accepts that C should be allowed to be naked in the splash room, the bathroom, his bedroom and the blue room.

The school's senior team leader also gave graphic evidence about a problem which is becoming increasingly evident. In accordance with the organisation's own guidelines, seclusion or withdrawal of C into the blue room or otherwise should be authorised (even if after the event) by a nominated senior manager at the school. The team leader's evidence was that this was impossible. There are too many withdrawals and seclusions. This has the effect that there is no oversight of what is happening from hour to hour of the average day. Informal and unmonitored seclusion operated in this way is totally unacceptable. It is plainly obvious from the written materials provided to the court that seclusion is neither understood nor even adequately recorded.

The head of residential services gave evidence that in C's accommodation, the kitchen, bathroom and his bedroom are accessible by an electronic key fob. Even when C had access to such a fob he demonstrated no ability to use it. Although the bedroom lock should have been disabled it was not clear from his evidence whether it had or had not been. It is probable that there will be times when only the blue room is available to C from the corridor of his accommodation unless his own bedroom door is open. It transpires that the locks can be deactivated and that this can and should be done save where access to a facility needs to be controlled e.g. to keep C and A apart or to prevent a dangerous circumstance e.g. access to knives in the kitchen or the use by either of them of an inherently dangerous area without supervision.

The court cannot leave the evidence without returning to that which LM said about her son. Contrary to the negative assumptions which I find are sometimes displayed in the attitudes to LM of others, the court found her to be a desperately worried, anxious but essentially reliable historian. More to the point she is and should be a partial defender of her son's interests. She is being accurate when she describes the extent to which her son's liberty is deprived and when she comments that for approximately 50% of the time her son's bedroom is locked and the court can therefore accept that as a fact; not least in the circumstance where management at the school do not know whether it is locked or not. The court likewise accepts her evidence, supported as it is by much of that which has been written, that the deterioration in her son's condition occurred from the time when he has had to share accommodation with A and changes in some of the staff complement who care for him.

LM had hoped that at the age of 18 her son would have his own space where he could freely access his own things and that he should be able to make some simple choices which both adults and children take for granted. In his case enjoying water and food and some very simple sensory pleasures: the splash room, the garden and outside play, a bouncy ball to sit on and laminated books. At the same time his privacy and activities should not be compromised so that he is unable to minimise pain, irritation and distress caused by sensory perceptions which he can only avoid by being naked.

C's recent deterioration has on any basis led to a significant increase in the deprivation of his liberty by his seclusion in the blue room, by confinement to his accommodation in the school so that his use of the garden and his enjoyment of outside activities and socialisation are curtailed and by the denial of choice in the manner in which his need to be naked is managed. That deprivation would be unlawful unless approved by the court as the only body with power to authorise a deprivation of his liberty.

That a general deprivation of liberty in the school is necessary and proportionate and in C's best interests has been extensively canvassed in the evidence which the court has heard and is now established, but within a defined compass. Likewise, the use of seclusion is necessary and proportionate and in his best interests but within an even narrower compass.

Seclusion at school – best practice

Neither the local authority nor the organisation operating the school had any power to deprive C of his liberty. The deprivation which did occur was accordingly unlawful and contrary to article 5 ECHR. The court has decided that various statutory codes of guidance applied to C's residence and seclusion at the school and also that it is appropriate for the court to set out what it expects i.e. the best practice which the court will apply itself when an application is made for decisions and/or declarations under the MCA 2005.

The expert evidence which the court accepts included that from Dr Carpenter and others that best practice relating to the seclusion of young people in particular those who are incapacitated with severe and complex healthcare needs is to be found in the MHA 1983 Code of Practice . In my judgement, the concession by the organisation that as a matter of good practice the school's measures and protections should be informed by the relevant principles of that code of practice is also the correct starting point for the court and any decision maker. In order to ascertain what is best practice in relation to seclusion, the court's attention has been directed not just to the statutory guidelines but also to academic literature which examines the other uses to which seclusion might be put. That literature echoes the evidence of Dr Carpenter in that it provides no empirical support for its use as punishment (the withdrawal of positive experiences) or positive therapy (behaviour management by the use of seclusion). The literature provided to the court [1] , [2] , [3] , [4] provides advice which was agreed with by Dr Carpenter in evidence, namely that the purpose of seclusion is containment which is the prevention of harm to others until the crisis has passed. It should only be used in extreme cases i.e. it is an emergency procedure to be implemented when there is significant risk. Behaviour management strategies have one primary aim: to establish rapid and safe (temporary) control over high risk behaviours. They are not a constructive method of nor are they concerned with changing behaviour in the long term. Even in the short term seclusion may increase risk to the individual and there is insufficient evidence to support its use as a safe or effective short term behaviour management device.

That material is coincident with the statutory and non statutory guidance to which I have referred. It also finds common purpose in the ' Guidance on Restraint and Seclusion in Health and Personal Social Services ' which is a best practice report published by the Human Rights Working Group on Restraint and Seclusion in August 2005. I hope the court will be forgiven for including in this Judgment an extract from that report which having regard to the expert evidence it has heard the court finds to be persuasive evidence of good practice:

as intervention of last resort;

where other, less restrictive, strategies have been unsuccessful, although an emergency situation may now allow time to try those other strategies;

never for punishment;

in reaching the decision, consideration should also be given to the individual needs of each service user in deciding the best method of control or restraint to be employed.

seclusion where a service user is forced to spend time alone against his/her will;

time out which involves restricting the service user's access to all positive reinforcements as part of a behavioural programme (this is explored in more detail in paragraph 2.13); and

withdrawal which involves removing the person from a situation which causes anxiety or distress, to a location where he/she can be continuously observed and supported until ready to resume activities.

ensuring that the number of staff deployed and their level of competence corresponds to the needs of service users and the likelihood that physical interventions will be needed. Staff should not be placed in vulnerable positions;

helping service users to avoid situations which are known to provoke violent or aggressive behaviour, for example, settings where there are few options for individualised activities;

developing care plans, which are responsive to individual needs and include current information on risk assessment;

creating opportunities for service users to engage in meaningful activities which include opportunities for choice and a sense of achievement;

developing staff expertise in working with service users who present challenging behaviours;

talking to service users, their families and advocates about the way in which they prefer to be managed when they pose a significant risk to themselves or others. Some service users prefer withdrawal to a quiet area to an intervention which involves bodily contact.

primary prevention has not been effective, and

the risks associated with not acting are greater than the risks of using restraint or seclusion; and

other appropriate methods, which do not involve restraint or seclusion, have been tried without success.

a description of behaviour sequences and settings which may require the use of restraint or seclusion;

the results of any assessment which has determined any contra-indications for the use of physical interventions;

a risk assessment which balances the risk of using physical intervention against the risk of not using a physical intervention;

a record of the views of the service user or those with parental responsibility in the case of children, and family members in the case of adults not deemed competent to make informed choices;

a system of recording behaviours and the use of restrictive physical interventions using an incident book with numbered and dated pages;

a record of previous methods which have been tried without success;

a description of the specific physical intervention techniques which are sanctioned, and the dates on which they will be reviewed;

details of staff who are judged competent to use these methods with this person;

the ways in which this approach will be reviewed, the frequency of review meetings and members of the review team.

The judicial review claims

The following failures are conceded or have not been the subject of dispute within these proceedings and have formed the basis for the partnership approach of the parties within the Court of Protection proceedings so that formal remedies imposed in the Administrative Court have not been necessary other than on an interim basis to achieve an agreed outcome. In respect of each claim the approved outcome is as follows:

Best Interests Formulations

Future placement : It is agreed by all parties and by the experts that C's next move must be to a dedicated and bespoke healthcare facility staffed by a multi-disciplinary team. The court approves this accord as being in C's best interests. It is likely that he will need to be there for a year or more while he is assessed, not least for the purpose of mental health care and treatment. The accommodation and its staffing and support will be that described earlier in this Judgment. It will not have a 'blue room'. The accommodation will be solely for C's use and will have access to a private garden and splash room. Its use and C's care and treatment will be in accordance with the MHA 1983 Code of Practice . Whether the outcome of the assessment as C's mother and brother fondly hope is that he can sooner rather than later be provided for in the community is undecided. The evidence is marginally optimistic but no more. At the moment, there is no evidence which suggests that an immediate move to a community facility is feasible or in C's interests.

Interim placement : There is no evidence that any alternative interim placement exists for C which is better than the school. Until C is able to move by July of this year, the balance of evidence is that steps must be taken to improve his care and treatment regimes at the school so as to maintain his routine and minimise harmful disruption. The necessary improvements specifically relate to the implementation of the care plan and pathway plan now that they are agreed and approved by the court and in particular to implement best practice guidance and the evidence which this court has accepted relating to seclusion and nakedness

Sharing accommodation with others : The overwhelming evidence is that it is not in C's best interests for him to share accommodation with A. That said, it is accepted that A cannot be temporarily moved from the school. He would adversely react to the change in routine in a way that would likely cause him significant harm. To move C in that way as an interim solution and before his planned move to the new healthcare facility would be more harmful than leaving him at the school and in the company of A for the relatively limited time when A returns from his own activities each day. There is no better option available.

The school has voluntarily ceased the practice of other children and young people using the corridor of C's accommodation to access a cloakroom / changing room. It is common ground that this will improve C's living conditions and is in his best interests. The organisation has also agreed to limit the staff who care for C to a core group who will receive further training and advice so as to minimise any inconsistency in care or unexpected changes in routine or professional relationships.

Deprivation of liberty within the school : The court will examine the facts so as to determine the full nature and extent of the alleged deprivation of liberty that has occurred during the next hearing. Although it may not be a question which the court is asked to determine, the court is well aware that the question includes the circumstance before C was 16 and when he was subject to a CA 1989 regime but when no application for a secure accommodation order was made nor was any alternative authorisation applied for in the High Court. For the purpose of this Judgment it is sufficient to find that there is and has been for a period not yet determined a deprivation of liberty i.e. no lawful authority existed for him to be deprived of his liberty generally or for him to be secluded in the blue room. From 29 July 2008 when he was 16 any deprivation of liberty that there was could and should have been authorised by the Court of Protection. Any deprivation of his liberty would be a breach of his article 5 ECHR rights and is accordingly unlawful. Whether the facts of and surrounding that deprivation of liberty breached statutory guidance, best practice and/or articles 3 and 8 ECHR will be a matter for the next hearing.

The most recent declarations as to the deprivation of C's liberty were made by consent. Despite that, it is appropriate for the court to indicate why it has concluded that C's general living arrangements amount to a deprivation of liberty which needs authorisation:

The balance of evidence is clear that C needs a placement which now and for the foreseeable future will involve physical and systemic restrictions that amount to a deprivation of liberty and that this is justified by his extreme vulnerability, his complex needs including his severe learning disability and aggressive behaviours and his propensity to abscond. However, the balance of evidence in respect of any continuing deprivation of liberty is that it should involve less restriction upon C's movements. It is in C's best interests that as often as is practicable he should have access to the garden and the internal doors within his accommodation should not be locked save for access to A's bedroom, the bathroom and those areas which would present him with danger e.g. access to some kitchen equipment or to slippery or sharp surfaces which would cause him harm i.e. for health and safety reasons.

Nakedness : The balance of evidence in relation to nakedness is that policies and procedures should be less restrictive so that they acknowledge C's sensory needs and choices. It is in C's best interests for his dignity to be protected by him being clothed e.g. when visitors and residents other than staff and his mother and brother are present in the communal areas of his accommodation but having regard to C's sensory need to be naked, restrictions on his choice to be so must be minimised. There is little evidence that C is concerned about A's presence or that A is aware of or responds to C when or because he is naked. While the issue of privacy arises, a policy of encouragement for them to be in separate areas of the accommodation should always be preferred to any attempt to persuade C to get dressed which might lead to his seclusion by an escalation into aggressive behaviour. Seclusion in the blue room solely for reasons of nakedness is unacceptable as it represents nothing more than a sanction to achieve a purpose and the purpose is not the preservation of dignity or C's safety which can usually be achieved in other ways but rather an amateur attempt at behaviour modification which having regard to the expert evidence will either be unsuccessful or harmful or both i.e. it is not a proportionate response to any risk nor the least restrictive option and is not in his best interests.

Staff must be aware of and be trained in strategies to allow C to be naked which must include him being naked in their presence e.g. they already happily interact with him when he is in the splash room naked: his communication with them and vice versa and the activities he undertakes with them can and must be undertaken in a way which is safe but also responds to his needs. C must not be taken to the blue room simply because he is naked or because he declines to get dressed. He should be encouraged to be in areas of his own accommodation where nakedness is acceptable to others e.g. his bedroom or the splash room or even the corridor if no persons other than staff or close family are present. The strategies must include dealing with situations when he is naked but becomes unacceptably aggressive to others and where dealing with the aggressive crisis must take priority by preventative and if necessary seclusive measures or where there is an urgent need to intervene to prevent or limit his self harm.

Seclusion and the Blue Room : Having considered the evidence relating to C, the evidence of best practice and the statutory guidance which applies, I have come to the conclusion that for the blue room to be lawful and in the best interests of C, its use must be restricted as follows:

The parties are now agreed that Ms Sharon Paley should help to construct the plan to deal with interim use of the blue room, C's self-injurious behaviour, to identify strategies dealing with nakedness and how to cope with A and to provide expert advice in relation to C's behaviour support, managing his transition, recording, training and staffing issues and, very importantly, helping to ensure that C's seclusion accords with paragraphs 15.43 to 15.67 of the MHA Code of Practice. That accords with this court's view that the evidence of Ms Paley as highlighted in this Judgment provides for the best interests of C.

The court also approves of the agreement between the parties that in future:

As a consequence of the findings, decisions and approvals made by the court detailed orders and declarations under the MCA 2005 have been made providing for C's interim placement at the school but under very clearly defined procedures and constraints, in particular, concerning his seclusion. His liberty may be deprived in very limited circumstances and only with the authority of this court. The identity of the parties, including C, his family, the school, the organisation and the public and health sector bodies have been anonymised to protect C. That anonymisation is protected by an order of the court.

It would not be right to leave this tragic case without noting that there are many very dedicated people, professionals and trained carers alike who are involved in the care of those with complex needs like C: they deserve the court's and society's sincere thanks. Despite this and despite the plethora of Government guidance and regulation, the court is left with a worrying impression that urban myth and so called 'common sense' rather than expert advice and multi-disciplinary working practices continues to be influential in some residential settings. Inquiries long ago established the need for specialist, qualified care and treatment for pupils and patients with special needs and likewise in the management of the establishments which provide that care and treatment: whether they are schools, children homes, care homes or hospitals. Until this court's intervention, that multi-disciplinary environment with access to high quality inter-disciplinary advice did not exist for C. That was unacceptable.

Judgment Ends.

Afternote : at a subsequent hearing the court approved the new healthcare placement for C. Therafter, and without reference to the court or to any expert who knew anything of C's circumstances, he was removed from the school by an authorisation made under section 2 MHA 1983 in circumstances which are not yet clear. As a consequence, proceedings continue.

Note 1 Paley, Sharon, “Seclusion and time out”, in Allen, David (Ed.) ‘ Ethical Approaches to Physical Intervention volume II : changing the agenda’, Kidderminster , British Institute of Learning Disabilities, 2009. [Back]

Note 2 Allen, David, (Ed.), “Behaviour change and behaviour management”, in ‘ Ethical Approaches to Physical Intervention: responding to challenging behaviour in people with intellectual disabilities ’, Kidderminster, British Institute of Learning Disabilities, 2003. [Back]

Note 3 Lyon, C.M, Pimor, A, ‘ Physical Interventions and the law; legal issues arising from the use of physical interventions in supporting children, young people and adults with learning disabilities and severe challenging behaviour ’, Kidderminster, British Institute of Learning Disabilities, 2004. [Back]

Note 4 Nelstrop, L, et al “World Views on Evidence Based Nursing” in ‘ A systematic review of the safety and effectiveness of restraint and seclusion as interventions for the short term management of violence in adult psychiatric in-patient settings and emergency departments ’, (submitted), 2006, 3(1): 8-18. [Back]